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2015 DIGILAW 1414 (MAD)

Thangammal v. K. Kumarasamy

2015-03-11

PUSHPA SATHYANARAYANA

body2015
Order: 1. The plaintiffs in the above suits are the petitioners in both the revisions. 2. The revisions are filed challenging the order refusing to appoint a Commissioner under Order 26 Rule 9 of the Code of Civil Procedure. 3. The suit in O.S.No.159 of 2009 is filed (I). for declaration that the sale deed dated 12/8/2005 executed by the second defendant in favour of the first defendant as null and void for want of consideration and it is vitiated by fraud (ii). for recovery of possession of the plaint schedule property from the first defendant with all trees, fixtures, factory, roads and water courses etc., with good condition (iii). For injunction restraining the first defendant from cutting and removing the trees and other plantations and transporting the same from the plaint schedule property and (iv). for recovery of future mesne profits. 4. The suit in O.S.No.129 of 2009 is filed (I). for declaration that the document dated 12/8/2005 executed by the second defendant as Power of Attorney Holder of the first plaintiff in favour of the first defendant is cancelled since null and void. (ii). For permanent injunction restraining the first defendant from encumbering, alienating, sub-leasing, creating charges or lien and or inducting new persons in the alleged lease hold right over the plaint schedule property and from cutting and removing any trees or altering the physical features of the property or to do any act of waste prejudicial to the right, claim and title of the plaintiffs over the plaint schedule property. (iii). For payment of future mesne profits for year at the rate of Rs.79,36.950/-. 5. Along with the suit, the plaintiff filed an application for appointment of Commissioner. The sale deed and the lease deed alleged are executed in favour of the second respondent/second defendant, who is the nephew of the first defendant. The plaintiff is the wife of the first defendant. 6. According to the plaintiffs, the suit property is an extent of 40 acres which was a rubber estate. The suit property is fully covered with high quality rubber yielding trees and other plantations. In the documents sought to be set aside, the first defendant had deliberately not mentioned about the availability of rubber trees and other valuable trees, but simply mentioned only as purayidam. The suit property is fully covered with high quality rubber yielding trees and other plantations. In the documents sought to be set aside, the first defendant had deliberately not mentioned about the availability of rubber trees and other valuable trees, but simply mentioned only as purayidam. As the plaintiffs had filed the suit for recovery of possession and also for permanent injunction restraining the defendants from cutting and removing the trees which are worth lakhs of rupees, it is necessary to appoint a Commissioner to enumerate the number of trees standing in the suit property. Therefore, the plaintiffs sought for appointment of a commissioner to make a local inspection in the plaint schedule property. 7. In the petition, the plaintiff had specifically mentioned in the points to be noted as follows:- (I). To note the physical features of the plaint schedule property. (ii). To count the rubber trees available in the plaint schedule property and also to note various structures including factory, office labour quarters, store etc., which are available in the plaint schedule property. (iii). To count all other trees and other natures available in the plaint schedule property. (iv). To report about the general maintenance and the growth of the trees available in the plaint schedule property. (v). To note the number of yielding rubber trees. (vi). Such other points that may be pointed out to the Commissioner at the time of his visit. 8. The application was resisted by the first and second respondents by filing their counter. It was specifically denied by the first defendant that there was no suppression of materials and the apprehension alleged by the plaintiff is baseless and devoid of merits and there was no need for taking a inventory and value the trees and the appointment of the Commissioner would be beyond the scope of the suit. 9. The Principal Sub-Judge, who tried the application, dismissed the same. Aggrieved by which the above Civil Revisions are filed. 10. Heard the learned counsel appearing for the petitioners and Mr.AR.L.Sundaresan, Senior Counsel for Mr.K.Vamanan for the first respondent. 11. The question that has to be considered in these revisions are whether the Commissioner has to be appointed to measure the property and enumerate the number of trees standing on the suit property. 12. 10. Heard the learned counsel appearing for the petitioners and Mr.AR.L.Sundaresan, Senior Counsel for Mr.K.Vamanan for the first respondent. 11. The question that has to be considered in these revisions are whether the Commissioner has to be appointed to measure the property and enumerate the number of trees standing on the suit property. 12. It is the specific case of the plaintiffs that the first and second defendants had jointly with an intention to cheat the plaintiffs, committed acts of fraud. The very case of the plaintiffs is that the sale deed was executed by the second defendant in favour of the first defendant without the knowledge of the plaintiffs by obtaining a Power of Attorney from the plaintiffs. As the parties were closely related, the plaintiffs did not expect the same. Therefore, it is alleged that the document is a sham document and the same has to be set aside. 13. Before the adjudication is done, the plaintiffs wanted to safeguard the property. As valuable standing trees are there, the plaintiffs came up with the application to appoint a commissioner to the local investigation and count the number of trees standing on the property. The suit is for recovery of possession with the trees and also for injunction restraining the defendants from cutting and removing the trees. While so, if the commissioner is not appointed, the plaintiffs may not be in a position to assess the damage that might have been caused by the defendants from cutting and removing the trees. Therefore, the plaintiffs wanted a Commissioner to be appointed to visit the plaint schedule property and note down the points as mentioned in the petition. 14. The learned Senior Counsel Mr.ARL.Sundaresan, who appeared for the respondents/defendants contended that the application to appoint a Commissioner itself is not maintainable, as the plaintiffs are only seeking to gather evidence by appointing a Commissioner which cannot be permitted. 15. In support of his contention, he placed reliance on S.ANTHONIDOSS & ANOTHER Vs. SABESTHIYAN & ANOTHER {1996 (1) CTC – 472}, wherein in paragraph 7, it has been held as follows:- 7. The other submission of the learned counsel that the other side will not be prejudiced by the appointment of an Advocate-Commissioner and that it will help to ensure that no construction is made to the detriment of the rights of the plaintiffs, is not a tenable one. The other submission of the learned counsel that the other side will not be prejudiced by the appointment of an Advocate-Commissioner and that it will help to ensure that no construction is made to the detriment of the rights of the plaintiffs, is not a tenable one. The question of appointment of a Commissioner does not depend upon merely whether any prejudice will be caused to the other side or not. Instead, there should be sufficient basis and justification as also an effective need and an appointment of Commissioner cannot be sought for or obtained as a matter of course and that too to achieve an ulterior object or motive. In this case, if the object and purport of the petitioners - plaintiffs is to ascertain the factum of deposit of majerials on the site, that factum stood admitted by the respondents in the Court below and there is no dispute or controversy over the same. If the object of the plaintiffs is to use the Commissioner to be appointed to project or prove his claim of ownership of the materials deposited on the land, the claim is thoroughly a misconceived one and there cannot be any appointment of Commissioner for such purpose, since ownership of the materials has to be proved otherwise than through report of the Commissioner. Equally the appointment of Commissioner cannot be availed of to ensure that there is no construction put up during the pendency of the proceedings, when it is not even the case of the plaintiffs that the construction is already in progress and on the contrary, the common case appears to be as disclosed from the materials placed before this Court that the land is only vacant. If the object of the petitioners is to ensure that the respondents do not put up any construction, he should, if at all, try to get an order of injunction and this cannot be achieved by a short circuit method of getting such orders by seeking for the appointment of a Commissioner. In my view, the application appears to be not only frivolous but a misconceived one with no genuine motive. The learned Judge in the Court below was well justified in rejecting the such an application. I do not see any patent error of law or failure to exercise any jurisdiction by the Court below in rejecting the application. In my view, the application appears to be not only frivolous but a misconceived one with no genuine motive. The learned Judge in the Court below was well justified in rejecting the such an application. I do not see any patent error of law or failure to exercise any jurisdiction by the Court below in rejecting the application. The revision, therefore, fails and shall stand dismissed. Consequently, CMP. Nos. 3803 and 3804 of 1996 are dismissed. 16. In the above said case, a Commissioner was sought to be appointed to note down the physical features including the stored black metal etc., in the suit items 1 to 20 that the said materials used for the building purpose and construction absolutely belongs to the plaintiffs. 17. In the above said facts, it is correct to state that the plaintiffs were seeking for ascertaining the materials available in the suit site. But in the present case, it is the trees which are permanently fixed to the land that are to be counted which if removed by cutting the same pending the suit, the same cannot be detected at a later point of time. Besides it will be difficult for the plaintiff to assess the damage also. 18. The learned counsel relied on D.S.REDDY, rep.BY HIS POWER AGENT, D.P.S.REDDY Vs. Dr.G.V.REDDY, rep. BY HIS POWER AGENT M.S.MURTHY, 30/2, RAMANUJAM STREET, CHENNAI 17 AND ANOTEHR reported in {1999 (1) CTC – 172}, wherein in paragraph 11, it has been held as follows:- 11. The Court below without even going into the question as to whether the inventory is necessary or not for the purpose of deciding the case, merely because such prayer was sought for, has granted the same. No reason whatsoever was given by the court below in support of its order. An order appointing a Commissioner is a judicial discretionary order and should be supported by reasons so that the proprietary of exercise of discretion becomes visible. No reason whatsoever was given by the court below in support of its order. An order appointing a Commissioner is a judicial discretionary order and should be supported by reasons so that the proprietary of exercise of discretion becomes visible. So, the order of the court below is set aside, and in modification of the directions given by the court below, the following directions are given:- (1) The petitioner/second defendant is directed to open the locker in question in the presence of the advocate-commissioner appointed by the court below, and handover the share certificates stand in the name of the first respondent/plaintiff to the Commissioner on or before 20.11.1998, after giving proper notice to the advocate commissioner. (2) If the petitioner does not do so within the stipulated time, the advocate-commissioner or the first respondent is directed to approach this Court for further direction. 19. The said decisions may not be applicable to the present case. No doubt, in every suit, the Court is not bound to appoint a Commissioner. The Commissioner's report is only a piece of evidence and the same is not binding on the Court. A Commissioner cannot be appointed in a suit for injunction to find out who is in possession and also to gather evidence. However, in the suit like the present one, if the Commissioner is appointed, it would minimise the evidence for easy adjudication. 20. As stated earlier, the trial Court has got discretion to order a Commission or not and such discretion should be exercised judicially. As stated earlier, the report of the Commissioner is only a piece of evidence and not necessary it is not binding on the Court. The trial Court being one of the fact finding Courts should give an opportunity to the parties to establish their case. In the present case, the first plaintiff, is the wife of the first defendant who alleges to have been defrauded. Therefore, the appointment of Commissioner at this stage is an effective need which would go to the adjudication of the suit. 21. In view of the above findings, the order of the trial Court is set aside and I.A is remanded to the trial Court for appointment of a fresh commission. 22. Therefore, the appointment of Commissioner at this stage is an effective need which would go to the adjudication of the suit. 21. In view of the above findings, the order of the trial Court is set aside and I.A is remanded to the trial Court for appointment of a fresh commission. 22. In the result, both the Civil Revision Petitions are allowed and the order passed in I.A.No.275 of 2009 in O.S.No.159 of 2009 and I.A.No.198 of 2009 in O.S.No.129 of 2009 dated 8/10/2010 are set aside and the same are remanded to the trial court for appointment of a fresh commission. No costs. Consequently, the connected Miscellaneous Petition (MD) No.1 of 2010 is closed.